A landmark court decision regarding the regulation of fish farms continues to cause legal ripples.

Last February, fish biologist Alexandra Morton and a few other petitioners won a declaration that provincial regulation of the ocean-finfish aquaculture industry was unconstitutional. In his written decision, B.C. Supreme Court Justice Christopher Hinkson ruled that under the Constitution Act, 1867, the federal government is responsible for management and protection of fisheries. He ordered an end to provincial regulation over ocean-finfish aquaculture by February 9, 2010.

Morton has often claimed that regulators are not addressing the threat of sea lice from fish farms to wild salmon. “Salmon farming is the emperor with no clothes, and I really just want people to see that,” she said in a phone interview with the Georgia Straight.

In late December, the federal government was back in B.C. Supreme Court, asking Hinkson to extend the deadline to December 2010. In a November 5 affidavit, Fisheries and Oceans Canada’s director general of the aquaculture management directorate, Trevor Swerdfager, swore that it was impossible to create a federal regulatory regime in time to meet the court-ordered deadline. He described the impact of the B.C. Supreme Court decision as “monumental” on aquaculture governance, claiming it would require the hiring up to 50 new staff.

According to Swerdfager’s affidavit, there are more than 300 aquaculture sites and more than 700 provincial licences in B.C. He declared that the B.C. industry’s wholesale revenue exceeded $500 million in 2007. As a result of the court decision, the federal government would be required to create new regulatory and administrative regimes in a variety of areas. This includes receiving licence applications, deciding where farms should be located, collecting fees, and developing and mandating standards for the design of net cages and for preventing escapes.

Swerdfager stated that the decision struck down provincial licensing issued under the B.C. Fisheries Act and the pollution-management provisions of the Finfish Aquaculture Waste Control Regulation. “Replacing these provisions is not a simple matter,” he claimed.

However, Fisheries and Oceans Canada suggested on its Web site that it could regulate fish farming: “If the extension is not granted by the Court, DFO [Fisheries and Oceans Canada] will establish and implement appropriate interim measures for the management of aquaculture in BC.”

Morton’s lawyer, Greg McDade, told the Straight by phone that the federal government won’t explain what those “interim measures” entail. “They filed an affidavit that was in conflict with what they had put up on their public Web site,” McDade claimed.

This is just one odd aspect of the case. Morton said that one respondent, Marine Harvest Canada Inc., has argued in court that it owns the fish under its control. However, she claimed that it’s unconstitutional to own fish in the ocean, and that Hinkson has already ruled that the ocean exists inside and outside of an open-net pen. “Our position is that if Marine Harvest wants to know who owns their fish, they need to go to court and do this on their own dime,” Morton said.

McDade described the debate over ownership of the fish as an interesting “academic question”, but claimed that it’s not relevant to the public-policy debate. “The question of whether this is private property or not is way less interesting than the question of whether people have the right to interfere with the public fishery or not,” he said.

Marine Harvest’s lawyer, Chris Harvey, and Fisheries and Oceans Canada staff did not respond to the Straight’s requests for a response by deadline. Hinkson reserved his decision.

Morton said that if Hinkson grants the federal government’s request for an extension, he should also prohibit the provincial government from allowing the expansion of ocean-finfish aquaculture in B.C. in the interim.